The international tools that are being developed to reinforce everyone's human right to water are largely focusing on individual rights to a certain amount of safe drinking water. The surrounding debates often touch on how to reconcile this right to water with privatisation, pricing of water, decision making processes and the role of the judiciary - problems that arise as water is being fetched or distributed and what to do when it is too expensive or too inaccessible.
But there is another perspective on the right to water among the indigenous communities around the world. According to a range of international documents and treaties, such as the Article 169 of the International Labour Organization, indigenous peoples not only have the right as individuals to a certain amount of drinking water per day, but they have a special right to access and govern the entire water resource as it flows through the landscape (the right to participate in the use, management and conservation of the natural resources pertaining to their lands, article 15.1 of ILO 169).
In a statement at the recent session of the UN Permanent Forum on Indigenous Issues (16-24 May), Catarina de Albuquerque, Special Rapporteur on the human right to safe drinking water and sanitation stated that "As Special Rapporteur, I regularly receive information about threats to indigenous rights, including especially concerns about pollution of water sources. For example, I have received numerous reports about the impact of mining operations - from uranium mining in the US to bauxite mining in India - indigenous peoples are seeing severe impacts on their access to clean water, as well as on their way of life and culture." Mining has serious environmental effects and often causes water pollution which, if not treated, naturally stands in the way for access to healthy drinking water. But the Special Rapporteur also refers to the mining impacts as having unwelcome effects on the way of life and culture of indigenous peoples - something quite larger than a discussion on the adequate amount of drinking water that a state must ensure its citizens. While much of the arguments for a human right to water in fact covers the performance of water services and how they can be used to fulfil individuals’ right to water, the claims made by indigenous communities are to more extensive water rights. These claims are made on the basis of a collective right of a traditional community to a natural resource.
The NGO Friends of the Earth International in 2004 stated that the concept of collective rights emerged because individual human rights do not guarantee adequate protection for indigenous peoples and other minorities exhibiting collective characteristics. Since then, the United Nations Declaration on the Rights of Indigenous Peoples has clearly formulated in its 25th article that "Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard." At the UN Permanent Forum on Indigenous Issues, Special Rapporteur de Albuquerque continued to refer to large scale infrastructure projects: "Projects to generate new sources of energy, such as dams and geothermal exploration, have also been reported to me as having a serious impact on access to clean water for indigenous peoples." Concerns about pollution of water sources are rampant in indigenous communities because not only do they threaten access to safe drinking water, but to cultural practices central for upholding a collective identity. A picture is thus emerging in which access to water, cultural heritage and sound environmental management cannot be separated.
UN General Comment No. 15 states that: "States should take steps to ensure that (…) indigenous peoples' access to water resources on their ancestral lands is protected from encroachment and unlawful pollution. States should provide resources for indigenous peoples to design, deliver and control their access to water." In order to make that happen, indigenous populations need to be more involved in water management. Valmaine Toki of the United Nations Permanent Forum on Indigenous Issues for 2011 - 2013, in an interview with Media Global on June 2nd points out that policies implemented by governments do not include an indigenous perspective to water. He emphasises that "(…) mismanagement, over-allocation to intensive agricultural practices, and extractive industries such as mining, results in pollution of waterways, ecosystem, and livelihoods (…)" Toki noted that among the forum’s most promising recommendations is the appointment of a Special Rapporteur for the Protection of Water and Water Catchment Areas, mandated to protect indigenous regions that are affected by industrial negligence (see the article here)
The degree of lack of water is often based on a pattern of discrimination in society. Those who are discriminated against in terms of political influence, housing rights, land rights etc and based on their religious, cultural or cast identity or economic status, are those who mostly lack safe water and improved sanitation. Indigenous peoples in many societies constitute a segment of the population that is widely discriminated against and therefore their lack of water and sanitation is often widespread. Their lack of access is not a coincidence but a result of politics which exclude them from shaping their own lives.
But addressing the lack of water of indigenous peoples entails a set of broader issues. Ensuring specific, targeted and deliberate policies and measures to make sure that the overall progress of a society also reaches the excluded segments of the population is just one the cornerstones. At an absolute minimum, affected people should be included in relevant decision-making processes of development projects on their ancestral lands. Amending formal water rights to align more with customary water rights is another measure that indigenous communities call for. Indigenous communities must also be included more at all water policy and implementation levels.